Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has “impliedly” foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new “preempting” federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish.
It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, a growing number of federal appellate courts are invoking the “implied” foreclosure doctrine to curtail § 1983 litigation. For example, some circuits have held that Title IX of the 1972 Education Amendments, which prohibits sex discrimination in schools that receive federal financial assistance, should be understood to preclude a remedy under § 1983 for gender-based discrimination by state educators. The same issue arises whenever civil rights statutes create “overlapping” remedies for civil rights violations.
The Supreme Court is poised to review this analysis. It has agreed to hear the following question: “Does an implied right of action under Title IX of 1972 Education Amendments preclude constitutional claims under § 1983 to remedy sex discrimination by federally funded educational institutions?” After tracing the genesis and expansion of the doctrine, this Article provides the arguments for rejecting “implied” congressional foreclosure of § 1983 constitutional claims that should govern this case and future cases.
Rosalie Berger Levinson, Misinterpreting "Sounds of Silence": Why Courts Should Not "Imply" Congressional Preclusion of § 1983 Constitutional Claims, 77 Fordham L. Rev. 775 (2008).